EXHIBIT 23(d)
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 5th day of February, 1999 by and between G W Capital Management, LLC,
a Colorado limited liability company registered as an investment adviser under
the Investment Advisers Act of 1940 ("the Adviser"), Ariel Capital Management,
Inc., an Illinois corporation registered as an investment adviser under the
Investment Advisers Act of 1940 ("the Sub-adviser"), and Maxim Series Fund,
Inc., a Maryland corporation ("the Fund"), this Agreement embodying the
arrangement whereby the Sub-adviser will act as an investment adviser to the
Maxim MidCap Portfolio of the Fund (the "Portfolio"), in conjunction with the
Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, a copy of which is attached hereto as Appendix A. This advisory
agreement and all amendments thereto are hereinafter referred to as "the GW
Agreement". In the GW Agreement, the Adviser agreed to act as adviser to and
manager of the Fund. In that capacity it agreed to manage the investment and
reinvestment of the assets of any portfolio of the Fund in existence or created
in the future and to administer the Fund's affairs. The Adviser wishes to obtain
assistance with respect to its aforesaid advisory and management role with
respect to the Portfolio only to the extent described herein, and the Fund by
this Agreement agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments as set forth in the
Fund's Registration Statement, management of investments and any other property
of the Portfolio, and providing or obtaining such services as may be necessary
in managing, acquiring or disposing of investments, consulting as appropriate
with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and sales
within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all records, memoranda, instructions or authorizations
relating to the acquisition or disposition of investments or other assets of the
Portfolio required to be maintained by Sub-adviser;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio;
(k) vote all shares held by the Portfolio.
In connection with the rendering of the services required to be provided by the
Sub-adviser under this Agreement, the Sub-adviser may, to the extent it deems
appropriate and subject to compliance with the requirements of applicable laws
and regulations, and upon receipt of written approval of the Fund, make use of
its affiliated companies, if any, and their employees; provided that the
Sub-adviser shall supervise and remain fully responsible for all such services
in accordance with and to the extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolio.
The Adviser will continue to provide all of the services described in the GW
Agreement other than the services described above which have been delegated to
the Sub-adviser in this Agreement. If, in the judgment of the Sub-adviser, the
Portfolio would be benefited by supplemental investment research from other
persons or entities, outside the context of brokerage transactions referred to
in Article IV hereof, the Sub-adviser is authorized to obtain, and pay at its
own expense, for such information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of the
Fund's Registration Statement, Prospectus, Articles of Incorporation, and Bylaws
as currently in effect and agrees during the continuance of this Agreement to
furnish the Sub-adviser with copies of any amendments or supplements thereto
before or at the time the amendments or supplements become effective. The
Sub-adviser will be entitled to rely on all documents furnished by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, based on an annual percentage of the assets of
the Portfolio (the "NAV Fee") as set forth below:
Annual Fee Assets
---------- ------
.50% first $25 million
.40% next $75 million
.30% over $100 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month, calculated as set
forth in the then current Registration Statement of the Fund. If this Agreement
is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GW Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
coordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or sub-adviser, or by the Sub-adviser or its affiliates. Because of
different investment objectives or other factors, a particular security may be
bought by the Sub-adviser or its affiliates or for one or more clients when one
or more clients are selling the same security. If purchases or sales of
securities for the Portfolio or other entities for which the Sub-adviser or its
affiliates act as investment adviser or sub-adviser or for their advisory
clients arise for consideration at or about the same time, the Fund agrees that
the Sub-adviser may make transactions in such securities, insofar as feasible,
for the respective entities and clients in a manner deemed equitable to all. To
the extent that transactions on behalf of more than one client of the
Sub-adviser during the same period may increase the demand for securities being
purchased or the supply of securities being sold, the Fund recognizes that there
may be an adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by the Board
of Directors of the Fund including a majority of directors who are not parties
to this Agreement or interested persons of any such party to this Agreement; and
this Agreement shall come into full force and effect on the date on which all of
these conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the Fund, the
Adviser and the Sub-adviser; provided that no material amendment of this
Agreement shall be effective without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser as a result of
the activities of the Sub-adviser under this Agreement, including the activities
of the Sub-adviser's officers and directors, agents, employees, controlling
persons, shareholders, and any other person or entity affiliated with the
Sub-adviser or retained by it to perform or assist in the performance of its
obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the GW Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GW Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement or the GW Agreement; provided, however, that in no event is
Adviser's indemnity in favor of Sub-adviser deemed to protect Sub-adviser
against any liability to which the Sub-adviser would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations or
duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolio, the term "majority of the outstanding shares"
means the lesser of (i) 67% of the shares represented at a meeting at which more
than 50% of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Sales Literature
The Adviser will not use the Sub-adviser's name in Fund sales
literature without prior review and approval by the Sub-adviser, which will not
be unreasonably withheld or delayed.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: G W CAPITAL MANAGEMENT, LLC
/s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxx X. XxXxxx
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxx X. XxXxxx
Title: Treasurer
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Witness: ARIEL CAPITAL MANAGEMENT, INC.
/s/ Xxxxxx Tag By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxx Tag Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, xX 00000
Attn:
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Wooden
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Wooden
Title: President
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Secretary
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 1st day of December, 1993 by and between The Great-West Life Assurance
Company, a Canadian stock life insurance company registered as an investment
adviser under the Investment Advisers Act of 1940 ("the Adviser"), Ariel Capital
Management, Inc., an Illinois corporation registered as an investment adviser
under the Investment Advisers Act of 1940 ("the Sub-adviser"), and Maxim Series
Fund, Inc., a Maryland corporation ("the Fund"), this Agreement embodying the
arrangement whereby the Sub-adviser will act as an investment adviser to the
Maxim Small Cap Value Fund Portfolio of the Fund (the "Portfolio"), in
conjunction with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, a copy of which agreement is dated April 1, 1982, and as thereafter
amended. This advisory agreement and all amendments thereto are hereinafter
referred to as "the GWL Agreement". In the GWL Agreement, the Adviser agreed to
act as adviser to and manager of the Fund. In that capacity it agreed to manage
the investment and reinvestment of the assets of any portfolio of the Fund in
existence or created in the future and to administer the Fund's affairs. The
Adviser wishes to obtain assistance with respect to its aforesaid advisory and
management role with respect to the Portfolio only to the extent described
herein, and the Fund by this Agreement agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out, present and recommend specific investment opportunities for
the Portfolio, consistent with an overall investment plan approved by the
Adviser and the Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments, management of
investments and any other property of the Portfolio, and providing or obtaining
such services as may be necessary in managing, acquiring or disposing of
investments, consulting as appropriate with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) daily communicate to the Adviser the purchases and sales within the
Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio.
The Adviser will continue to provide all of the services described in
the GWL Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information. Supplemental investment research shall be limited to statistical
and other factual information, advice regarding economic factors and trends, and
advice as to occasional transactions in specific securities, and shall not
involve general advice or recommendations regarding the purchase or sale of
securities. The expenses of the Sub-adviser may not be necessarily reduced as a
result of the receipt of such supplemental information. The Sub-adviser and the
Adviser shall regularly report to the Board when the Sub-adviser has secured or,
where time permits, the Sub-adviser intends to secure said supplemental
investment research. It is understood and agreed that the Board retains the
right to limit the scope of or disapprove of said research.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, a percentage of the assets of the Portfolio
(the "NAV Fee") according to the following schedule:
Average Daily
Net Assets NAV Fee
--------------- -----
First $5 million .03333%
Next $10 million .02917%
Next $10 million .02500%
Excess of $25 million .02083%
This calculation will be based on the average daily net assets of the Portfolio
during such month.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GWL Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction. In evaluating the net results of brokerage
services offered by brokers or dealers that also provide supplemental investment
research to the Sub-adviser for a flat fee in accordance with section A of
Article II hereof, the Sub-adviser need not take such a flat fee into
consideration.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or sub-adviser or for their advisory clients arise for
consideration at or about the same time, the Fund agrees that the Sub-adviser
may make transactions in such securities, insofar as feasible, for the
respective entities and clients in a manner deemed equitable to all. To the
extent that transactions on behalf of more than one client of the Sub-adviser
during the same period may increase the demand for securities being purchased or
the supply of securities being sold, the Fund recognizes that there may be an
adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies. The Fund recognizes that in some cases
this procedure may adversely affect the size of the position obtainable for the
Portfolio.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by the Board
of Directors of the Fund including a majority of directors who are not parties
to this Agreement or interested persons of any such party to this Agreement; and
this Agreement shall come into full force and effect on the date on which all of
these conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) shall not be amended without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
rendering services hereunder or any losses that may be sustained by reason of
the purchase, holding or sale of any security or other asset on behalf of the
Fund, except as otherwise provided by law. The Sub-adviser shall not be liable
for the acts and omissions of any independent contractor used by it nor for
those of any bank, trust company, broker or other person with whom or into whose
hands any monies, shares of the Fund, or securities and investments may be
deposited or come, pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
The Sub-adviser agrees and undertakes to hold the Adviser harmless and
to indemnify and protect the Adviser from and against any and all lawsuits or
other claims brought against the Adviser as a result of the activities of the
Sub-adviser under this Agreement, including the activities of the Sub-adviser's
officers and directors, agents, employees, controlling persons, shareholders,
and any other person or entity affiliated with the Sub-adviser or retained by it
to perform or assist in the performance of its obligations under this Agreement.
The Adviser will notify the Sub-adviser promptly of the receipt of any lawsuit
or other claims brought against the Adviser as a result of the Sub-adviser's
activities under this Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GWL Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this agreement or the GWL Agreement. The Sub-adviser will notify the Adviser
promptly of the receipt of any lawsuit or other claims brought against the
Sub-adviser as a result of the Adviser's activities under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws and that such information at all such times will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary tomake the statements therein not
misleading. The Sub-adviser will notify the Fund and the Adviser promptly of the
happening of any event which in the judgment of the Sub-adviser makes any
statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Sub-adviser need
only make such notification with respect to information in the Disclosure
Documents based upon information furnished in writing to the Fund or the Adviser
by the Sub-adviser which the Fund had informed the Sub-adviser was to be used,
or which the Sub-adviser had acknowledged was to be used, in the particular
Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement is subject to the provisions of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder, including such exemptions therefrom as the
Securities and Exchange Commission may grant. Words and phrases used herein
shall be interpreted in accordance with that Act and those rules and
regulations. As used with respect to the Portfolio, the term "majority of the
outstanding shares" means the lesser of (i) 67% of the shares represented at a
meeting at which more than 50% of the outstanding shares are represented or (ii)
more than 50% of the outstanding shares.
ARTICLE XIII
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their respective officials duly authorized, as of the day and year
first above written.
Witness: THE GREAT-WEST LIFE ASSURANCE COMPANY
/s/ Xxxxxx X. Xxxxxxxxx, Xx. By: /s/ Xxxx X. Xxxxxx
Witness: ARIEL CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx, Xx.
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. XxxXxxxxx
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
December 1, 1993, as amended (the "Agreement"), and is hereby incorporated into
and made a part of the Agreement.
Effective November 1, 1996, the parties to this agreement shall be
Maxim Series Fund, Inc., GW Capital Management, Inc., a Colorado corporation,
registered under the Investment Company Act of 1940 ("the Adviser"), and Ariel
Capital Management, Inc. ("the Sub-Adviser") whereby the Adviser will act as
investment adviser to the Fund according to the terms and conditions set forth
in the Agreement and the Great-West Life Assurance Company shall, from and after
that date, no longer be a party to said agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
Witness: ARIEL CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx, Xx.
President
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxx X. Xxxxx By: /s/ X.X. Xxxx
Witness: GW CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
President
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
December 1, 1993, by and between GW Capital Management, LLC ("the Adviser"),
Ariel Capital Management, Inc. ("the Sub-adviser") and Maxim Series Fund, Inc.
("xxx Xxxx") ("the Agreement"), as amended November 1, 1996, and is hereby
incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management,
Inc." shall refer instead to "GW Capital Management, LLC," and all references to
"GW Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
ARIEL CAPITAL MANAGEMENT, INC.
Attest: /s/ Xxxxxx Tag By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxx Tag Name: Xxxxxxx Xxxxxx
Title: SR Vice President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxx X. Xxxxxxx By: /s/ X.X. Xxxx
Name: Xxxx X. Xxxxxxx Name: X.X. Xxxx
Title: President
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxxxx
Title: President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 30th day of March , 2001 by and between G W Capital Management, LLC, a
Colorado limited liability company registered as an investment adviser under the
Investment Advisers Act of 1940 ("the Adviser"), Barclays Global Fund Advisors,
a corporation organized under the laws of California, registered as an
investment adviser under the Investment Advisers Act of 1940 ("the
Sub-adviser"), and Maxim Series Fund, Inc., a Maryland corporation ("the Fund"),
this Agreement embodying the arrangement whereby the Sub-adviser will act as an
investment adviser to the portfolios of the Fund (the "Portfolios") listed in
Schedule A attached hereto and commencing on the dates specified therein, as
such Schedule may be amended from time to time by mutual written agreement, in
conjunction with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, a copy of which has been provided to the Sub-adviser. This advisory
agreement and all amendments thereto are hereinafter referred to as "the GW
Agreement". In the GW Agreement, the Adviser agreed to act as adviser to and
manager of the Fund. In that capacity it agreed to manage the investment and
reinvestment of the assets of any portfolio of the Fund in existence or created
in the future and to administer the Fund's affairs. The Adviser wishes to obtain
assistance with respect to its aforesaid advisory and management role with
respect to the Portfolios only to the extent described herein, and the Fund by
this Agreement agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolios, and, subject to the
review of the Board of Directors of the Fund ("the Board"), to manage the
investment and reinvestment of the assets of the Portfolios and to administer
its affairs, for the period and on the terms and conditions set forth in this
Agreement. The Sub-adviser hereby accepts such employment and agrees during such
period, at its own expense to render the services and to assume the obligations
herein set forth for the compensation provided for herein. The Sub-adviser shall
for all purposes herein be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized by this Agreement or
otherwise, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
A. Investment Sub-Advisory Services. In carrying out its
obligations to assist in managing the investment and reinvestment of
the assets of the Portfolios, the Sub-adviser shall, when appropriate
and consistent with the limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of
the Portfolios;
(b) consult with the Adviser and with the Board and furnish to
the Adviser and the Board recommendations with respect to an overall
investment plan for the Portfolios for approval, modification, or
rejection by the Board;
(c) seek out specific investment opportunities for the Portfolios
consistent with an overall investment plan approved by the Adviser and
the Board;
(d) take such steps as are necessary to implement any overall
investment plan approved by the Board for the Portfolios including
making and carrying out decisions to acquire or dispose of permissible
investments as set forth in the Fund's Registration Statement,
management of investments and any other property of the Portfolios and
providing or obtaining such services as may be necessary in managing,
acquiring or disposing of investments, consulting as appropriate with
the Adviser;
(e) regularly report to the Adviser and the Board with respect
to the implementation of any approved overall investment plan and any
other activities in connection with management of the assets of the
Portfolios;
(f) communicate as appropriate to the Adviser adequate and
timely information on investment related activity within the
Portfolios, including, but not limited to purchases, sales and
contractual commitments ;
(g) arrange with the applicable broker or dealer at the time
of the purchase or sale of investments or other assets of the
Portfolios for the appropriate delivery of the investment or other
asset;
(h) report monthly in writing to the Adviser and report at
least annually in person to the Board with respect to the
implementation of the approved investment plan and any other activities
in connection with management of the assets of the Portfolios;
(i) maintain all records, memoranda, instructions or
authorizations relating to the acquisition or disposition of
investments or other assets of the Portfolios required to be
maintained by Sub-adviser;
(j) arrange with the Adviser an administrative process which
permits the Adviser to appropriately reflect in its daily determination
of unit values, the transactions, positions and obligations of the
Portfolios resulting from the investment management services provided
to the Portfolios;
(k) vote all shares held by the Portfolios.
In connection with the rendering of the services required to be
provided by the Sub-adviser under this Agreement, the Sub-adviser may, to the
extent it deems appropriate and subject to compliance with the requirements of
applicable laws and regulations, and upon receipt of written approval of the
Fund, make use of its affiliated companies, if any, and their employees;
provided that the Sub-adviser shall supervise and remain fully responsible for
all such services in accordance with and to the extent provided by this
Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolios.
The Adviser will continue to provide all of the services described in
the GW Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolios would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Portfolios and/or Fund as stated in its Registration
Statement, as amended from time to time, filed with the Securities and Exchange
Commission, its Articles of Incorporation and Bylaws, as amended from time to
time, and the provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will
pay on the last day of each month as monthly compensation to the Sub-adviser for
the services rendered by the Sub-adviser with respect to the Portfolios, as
described in Schedule B attached hereto, as such Schedule may be amended from
time to time by mutual written agreement.
Payment to the Sub-adviser will be made monthly by the Adviser based on
the average daily net assets of the Portfolios during each month. If this
Agreement is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio). As
described in the GW Agreement, the Fund and/or the Adviser pays all other
expenses incurred in the operation of the Portfolios and all of the Fund's
general administrative expenses. As stated above, the Subadviser shall not be
responsible for the expenses of the Fund, including the following expenses:
organization and certain offering expenses of the Fund (including out-of-pocket
expenses, but not including the Subadviser's overhead and employee costs); fees
payable to the Subadviser and to any other Fund advisers or consultants; legal
expenses; auditing and accounting expenses; interest expenses; telephone, telex,
facsimile, postage and other communications expenses; taxes and governmental
fees; fees, dues and expenses incurred by or with respect to the Fund in
connection with membership in investment company trade organizations; fees and
expenses of the Fund's Administrator or of any transfer agent, registrar, or
dividend disbursing agent of the Fund; payments to the Administrator for
maintaining the Fund's financial books and records and calculating its daily net
asset value; other payments for portfolio pricing or valuation services to
pricing agents, accountants, bankers and other specialists, if any; expenses of
preparing share certificates; other expenses in connection with the issuance,
offering, distribution or sale of securities issued by the Fund; expenses
relating to investor and public relations; expenses of registering and
qualifying shares of the Fund for sale; freight, insurance and other charges in
connection with the shipment of the Fund's portfolio securities; brokerage
commissions or other costs of acquiring or disposing of any portfolio securities
or other assets of the Fund, or of entering into other transactions or engaging
in any investment practices with respect to the Fund; expenses of printing and
distributing prospectuses, Statements of Additional Information, reports,
notices and dividends to stockholders; costs of stationery or other office
supplies; any litigation expenses; and costs of stockholders' and other
meetings.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolios, subject to the provisions of Article II regarding
coordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolios
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolios' orders, taking into account all appropriate
factors, including price, dealer spread or commission, if any, size of the
transaction, and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolios for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services or other services to others so long as the Sub-adviser fulfills its
rights and obligations under this Agreement. It is understood that directors,
officers, employees and shareholders of the Fund are or may become interested in
the Sub-adviser, as directors, officers, employees or shareholders or otherwise,
and that directors, officers, employees or shareholders of the Sub-adviser are
or may become similarly interested in the Fund, and that the Sub-adviser is or
may become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolios in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolios may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or sub-adviser, or by the Sub-adviser or its affiliates. Because of
different investment objectives or other factors, a particular security may be
bought by the Sub-adviser or its affiliates or for one or more clients when one
or more clients are selling the same security. If purchases or sales of
securities for the Portfolios or other entities for which the Sub-adviser or its
affiliates act as investment adviser or sub-adviser or for their advisory
clients arise for consideration at or about the same time, the Fund agrees that
the Sub-adviser may make transactions in such securities, insofar as feasible,
for the respective entities and clients in a manner deemed equitable to all. To
the extent that transactions on behalf of more than one client of the
Sub-adviser during the same period may increase the demand for securities being
purchased or the supply of securities being sold, the Fund recognizes that there
may be an adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolios as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolios
and to such other accounts or companies. The Fund recognizes that in some cases
this procedure may adversely affect the size of the position obtainable for the
Portfolios.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not serve or
act as hereunder) unless and until it is approved by the Board of Directors of
the Fund including a majority of directors who are not parties to this Agreement
or interested persons of any such party to this Agreement, and by a majority of
the shareholders of each of the Portfolios.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of each of the
Portfolios, and (b) by the vote of a majority of the members of the Board, who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days
prior written notice;
(b) shall be subject to termination, without the payment of any
penalty, by the Board or by vote of a majority of the outstanding
voting securities of each of the Portfolios, on sixty days written
notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the
Fund on behalf of , the Adviser and the Sub-adviser; provided that no
material amendment of this Agreement shall be effective without
specific approval of such amendment by (i) the Board, including a
majority of those directors who are not parties to this Agreement or
interested persons of such a party, cast in person at a meeting called
for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of each of the Portfolios; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolios shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner; provided, however, that the Sub-adviser may make such records and
accounts available to its legal counsel and independent auditors. All such
accounts or records shall be made available, within five (5) business days of
the request, to the Fund's accountants or auditors during regular business hours
at the Sub-adviser's offices upon reasonable prior written notice; provided,
however, that the Sub-adviser shall be permitted to keep such records or copies
thereof for such periods of time as are necessary to comply with the rules and
regulations of the Securities and Exchange Commission or other applicable
provisions of state or federal law. In addition, the Sub-adviser will provide
any materials, reasonably related to the investment sub-advisory services
provided hereunder, as may be reasonably requested in writing by the directors
or officers of the Fund or as may be required by any governmental agency or
self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser as a result of
the activities (or omissions by the Sub-adviser to carry out its obligations
hereunder) of the Sub-adviser under this Agreement, including the activities (or
such omissions) of the Sub-adviser's officers and directors, agents, employees,
controlling persons, shareholders, and any other person or entity affiliated
with the Sub-adviser or retained by it to perform or assist in the performance
of its obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the GW Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GW Agreement (or omissions by the
Adviser to carry out its obligations hereunder or thereunder), including the
activities (or such omissions) of the Adviser's officers, directors, agents,
employees, controlling persons, shareholders, and any other person or entity
affiliated with the Adviser or retained by it to perform or assist in the
performance of its obligations under this Agreement or the GW Agreement;
provided, however, that in no event is Adviser's indemnity in favor of
Sub-adviser deemed to protect Sub-adviser against any liability to which the
Sub-adviser would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations or duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolios for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents at least 10 days
prior to distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolios.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used in the
particular Disclosure Document. The Fund and the Adviser will notify the
Sub-adviser promptly of the happening of any event which in the judgment of the
Fund or the Adviser makes any statement made in the Disclosure Documents untrue
in any material respect or requires the making of any changes in the Disclosure
Documents in order to make the statements therein, in the light of circumstances
under which they were made, not misleading in any material respect, except that
the Fund and the Adviser need not make such notification with respect to
information in the Disclosure Documents based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used in the particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used in a particular Disclosure Document, will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading as
required by the provisions of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940,
as amended, and other applicable laws. The Sub-adviser will notify the Fund and
the Adviser promptly of the happening of any event which in the judgment of the
Sub-adviser makes any statement made in the Disclosure Documents untrue in any
material respect or requires the making of any changes in the Disclosure
Documents in order to make the statements therein, in the light of circumstances
under which they were made, not misleading in any material respect, except that
the Sub-adviser need only make such notification with respect to information in
the Disclosure Documents based upon information furnished in writing to the Fund
or the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser
was to be used in the particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used in the particular
Disclosure Document. In case any action or proceeding shall be brought against
the Fund or the Adviser, their directors or officers, or any such controlling
persons, in respect of which indemnity may be sought against the Sub-adviser,
the Sub-adviser shall have the rights and duties given to the Fund and the
Adviser, and the Fund or the Adviser, their directors or officers, or such
controlling persons shall have the rights and duties given to the Sub-adviser,
by the preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolios, the term "majority of the outstanding shares"
means the lesser of (i) 67% of the shares represented at a meeting at which more
than 50% of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Non-Compete
The Adviser and Sub-adviser acknowledge that, in the course of
providing services under this Agreement, Sub-adviser may be introduced to
current or prospective customers (hereinafter a "Customer") of the Fund or any
affiliate of the Adviser and, as a result of such introduction may have access
to or obtain information about such Customer. In the event said Customer
ultimately utilizes the Fund or any affiliate of the Adviser as an investment
product provider for any defined contribution plan offered by Customer,
Sub-adviser agrees:
(a) not knowingly to utilize any confidential information
regarding the Customer and/or its employees' participation in such
defined contribution plan(s) which Sub-adviser receives as a result of
providing services under this Agreement in non-Fund business or the
Sub-adviser of its affiliates;
(b) not knowingly to attempt to contact the Customer without
prior notification to the Adviser; and
(c) not knowingly to attempt to sell any mutual funds affiliated
with Sub-adviser directly to Customer on a stand-alone basis if the
Portfolios are included either directly or indirectly in the
Customer's defined contribution plan(s). In the event such Customer
does not utilize the Fund or any affiliate of the Adviser as an
investment product provider, Sub-adviser is not subject to any of the
foregoing terms and conditions.
For purposes of this Section XV, defined contribution plan shall mean 401(a),
401(k), 457 and 403(b) plans.
For purposes of this Section XV, introduction shall mean inclusion of the
Portfolios in the defined contribution product offered to that Customer's
consideration.
The following situations are not subject to the provisions of this
Section XV:
(a) Customer has a pre-existing relationship with Sub-adviser or
an affiliate of Sub-adviser; or
(b) Sub-adviser or any of its affiliates makes other funds
available to another defined contribution plan product provider and
that product provider bids on the Customer's case using publicly
available information; or
(c) no introduction to Customer is made.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: G W CAPITAL MANAGEMENT, LLC
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. XxXxxx
-------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. XxXxxx
Title: Treasurer
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. XxXxxx
-------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. XxXxxx
Title:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Witness: BARCLAYS GLOBAL FUND ADVISORS
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Legal Department
Schedule A
Commencing on April 1, 2001:
----------------------------
Maxim Stock Index Portfolio
Maxim Index 600 Portfolio
Maxim Index 400 Portfolio
Maxim Growth Index Portfolio
Maxim Value Index Portfolio
Commencing on May 1, 2001:
Maxim Index European Portfolio
Maxim Index Pacific Portfolio
Schedule B
Maxim Stock Index, Index 600, Index 400
Growth Index and Value Index Portfolios: First $2.250 billion 0.03%
Next $1.000 billion 0.02%
Over $3.250 billion 0.01%
Maxim Index European and Index Pacific Portfolios: First $200 million 0.10%
Next $100 million 0.08%
Next $200 million 0.05%
Over $500 million 0.03%
AMENDMENT TO
SUB-ADVISORY AGREEMENT
The following amendment is made to the Sub-Advisory Agreement dated
April 1, 1998, by and between Maxim Series Fund, Inc. (the "Fund"), GW Capital
Management, LLC (the "Adviser"), and Founders Asset Management LLC (the
"Sub-Adviser") (the "Agreement"), and is hereby incorporated into and made a
part of the Agreement.
1. Effective May 1, 1999, all references to "Maxim Blue Chip Portfolio"
shall refer instead to "Maxim Founders Growth & Income Portfolio" wherever such
references shall appear in the Agreement.
2. Effective the date of this amendment, the following provision will be
added as Article XVII of the Agreement:
Non-Compete
The Adviser and Sub-Adviser acknowledge that, in the course of
providing services under this Agreement, Sub-Adviser may be introduced to
current or prospective customers (hereinafter a "Customer") of the Fund or any
affiliate of the Adviser and, as result of such introduction, may have access to
or obtain information about such Customer. In the event said Customer ultimately
utilizes the Fund or any affiliate of the Adviser as an investment product
provider for any defined contribution plan offered by Customer, Sub-Adviser
agrees:
(a) not to utilize any confidential information regarding the Customer
and/or its employees' participation in such defined contribution plan(s) which
Sub-Adviser receives as result of providing services under this Agreement in
non-Maxim business of Sub-Adviser or any of its affiliates;
(b) not to attempt to contact the Customer without prior notification to
the Adviser; and
(c) not to knowingly attempt to sell any mutual funds affiliated with
Sub-Adviser directly to Customer on a stand-alone basis while Maxim Series Fund
Portfolios are included either directly or indirectly in the Customer's defined
contribution plan(s).
In the event such Customer does not utilize the Fund or any affiliate
of the Adviser as an investment product provider, Sub-Adviser is not subject to
any of the foregoing terms and conditions.
For purposes of this Section, defined contribution plan shall mean
401(a), 401(k), 457 and 403(b) plans.
For purposes of this Section, introduction shall mean inclusion of the
Portfolio (which is the subject of this Agreement) in the defined contribution
product offered to Customer for that Customer's consideration.
The following situations are not subject to the provisions of this
Section:
(a) Customer has a pre-existing relationship with Sub-Adviser; or
(b) Sub-Adviser or any of its affiliates makes other funds or
sub-advisory services available to another defined contribution
plan product provider and that product provider bids on the
Customer's case using publicly available information; or
(c) no introduction to Customer is made.
The Adviser shall notify the Sub-Adviser in writing of all Customers to
which the foregoing restrictions apply.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate this 27th day of September, 1999, in
their names and on their behalf by and through their duly authorized officers.
MAXIM SERIES FUND, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: President
FOUNDERS ASSET
MANAGEMENT LLC
Attest: /s/ Xxxxxxx X. Xxxxxxxxxxxxxx By: /s/ Xxxxx X. Xxx
Name: Xxxxxxx X. Xxxxxxxxxxxxxx Name: Xxxxx X. Xxx
Title: SR Vice President -
Administration
GW CAPITAL MANAGEMENT, LLC.
Attest: /s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: Xxxx X. Xxxxxx
Title: President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 3rd day of March, 1997 by and between G W Capital Management, Inc., a
Colorado corporation, registered as an investment adviser under the Investment
Advisers Act of 1940 ("the Adviser"), INVESCO Trust Company, a Colorado trust
company registered as an Investment Adviser under the Investment Advisers Act of
1940 ("the Sub-adviser"), and Maxim Series Fund, Inc., a Maryland corporation
("the Fund"), this Agreement embodying the arrangement whereby the Sub-adviser
will act as an investment adviser to the Maxim INVESCO Balanced Portfolio of the
Fund (the "Portfolio"), in conjunction with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, which agreement is dated April 1, 1982, and as thereafter amended, a
copy of which is attached hereto as Appendix A. This advisory agreement and all
amendments thereto are hereinafter referred to as "the GW Agreement". In the GW
Agreement, the Adviser agreed to act as adviser to and manager of the Fund. In
that capacity it agreed to manage the investment and reinvestment of the assets
of any portfolio of the Fund in existence or created in the future and to
administer the Fund's affairs. The Adviser wishes to obtain assistance with
respect to its aforesaid advisory and management role with respect to the
Portfolio only to the extent described herein, and the Fund by this Agreement
agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments as set forth in the
Fund's Registration Statement, management of investments and any other property
of the Portfolio, and providing or obtaining such services as may be necessary
in managing, acquiring or disposing of investments, consulting as appropriate
with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and sales
within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio;
(k) vote all shares held by the Portfolio.
In connection with the rendering of the services required to be
provided by the Sub-adviser under this Agreement, the Sub-adviser may, to the
extent it deems appropriate and subject to compliance with the requirements of
applicable laws and regulations, and upon receipt of written approval of the
Fund, make use of its affiliated companies and their employees; provided that
the Sub-adviser shall supervise and remain fully responsible for all such
services in accordance with and to the extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolio.
The Adviser will continue to provide all of the services described in
the GW Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefitted by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized after consultation with the Adviser to obtain, and
pay at its own expense, for such information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, based on an annual percentage of the assets of
the Portfolio (the "NAV Fee") as set forth below:
Annual Fee Assets
------ --- ------
.50% first $25 million
.45% next $50 million
.40% next $25 million
.35% over $100 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month, calculated as set
forth in the then current Registration Statement of the Fund. If this Agreement
is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GW Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser will be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or for their advisory clients arise for consideration at
or about the same time, the Fund agrees that the Sub-advisor may make
transactions in such securities, insofar as feasible, for the respective
entities and clients in a manner deemed equitable to all. To the extent that
transactions on behalf of more than one client of the Sub-adviser during the
same period may increase the demand for securities being purchased or the supply
of securities being sold, the Fund recognizes that there may be an adverse
effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by (i) the
Board of Directors of the Fund including a majority of directors who are not
parties to this Agreement or interested persons of any such party to this
Agreement; (ii) the shareholders of the Portfolio in accordance with the 1940
Act, and (iii) the Merger of AIM Management Group Inc. and INVESCO PLC pursuant
to the Merger Agreement of November 4, 1996 is consummated and this Agreement
shall come into full force and effect on the date on which all of these
conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date first
above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the Fund, the
Adviser and the Sub-adviser; provided that no material amendment of this
Agreement shall be effective without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser as a result of
the activities of the Sub-adviser under this Agreement, including the activities
of the Sub-adviser's officers and directors, agents, employees, controlling
persons, shareholders, and any other person or entity affiliated with the
Sub-adviser or retained by it to perform or assist in the performance of its
obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the GW Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GW Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement or the GW Agreement; provided, however, that in no event is
Adviser's indemnity in favor of Sub-adviser deemed to protect Sub-adviser
against any liability to which the Sub-adviser would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations or
duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolio, the term "majority of the outstanding shares"
means the lesser of (i) 67% of the shares represented at a meeting at which more
than 50% of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Sales Literature
The Adviser will not use the Sub-adviser's name in Fund sales
literature without prior review and approval by the Sub-adviser, which will not
be unreasonably withheld or delayed.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: G W CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. XxXxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Witness: INVESCO TRUST COMPANY
/s/ Xxxx X. Xxxxx /s/ Xxx X. Xxxxxx
Address: 0000 Xxxx Xxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Secretary
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
March 3, 1997, by and between GW Capital Management, LLC ("the Adviser"),
INVESCO Trust Company ("the Sub-adviser") and Maxim Series Fund, Inc. ("xxx
Xxxx") ("the Agreement") for the Maxim INVESCO Balanced Portfolio and is hereby
incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management,
Inc." shall refer instead to "GW Capital Management, LLC," and all references to
"GW Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
INVESCO TRUST COMPANY
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxx X. Xxxxxx
Title: President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
AMENDMENT TO
SUB-ADVISORY AGREEMENT
The following amendment is made to the Sub-Advisory Agreement dated
March 3, 1997, by and between Maxim Series Fund, Inc. (the "Fund"), GW Capital
Management, LLC (the "Adviser"), and INVESCO Trust Company (the "Sub
Adviser")(the "Agreement"), as amended December 5, 1997, for Maxim INVESCO
Balanced Portfolio, and is hereby incorporated into and made a part of the
Agreement.
Effective May 1, 1999, all references to "INVESCO Trust Company" shall
refer instead to "INVESCO Funds Group, Inc.", and all references to "INVESCO
Trust Company, a Colorado trust company" shall refer instead to "INVESCO Funds
Group, Inc., a Delaware corporation" wherever such references shall appear in
the Agreement or the amendments thereto.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate this 6th day of March, 2001, in theirs
names and on their behalf by and through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
Title: Secretary Title: Vice President
INVESCO FUNDS GROUP, INC.
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel Title: Senior Vice President, Treasurer
MAXIM SERIES FUND, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx XxXxxxxx
Title: Secretary Title: Chairman and President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 3rd day of March, 1997 by and between G W Capital Management, Inc., a
Colorado corporation registered as an investment adviser under the Investment
Advisers Act of 1940 ("the Adviser"), INVESCO Trust Company, a Colorado trust
company registered as an Investment Adviser under the Investment Advisers Act of
1940 ("the Sub-adviser"), and Maxim Series Fund, Inc., a Maryland corporation
("the Fund"), this Agreement embodying the arrangement whereby the Sub-adviser
will act as an investment adviser to the Maxim INVESCO ADR Portfolio of the Fund
(the "Portfolio"), in conjunction with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, which agreement is dated April 1, 1982, and as thereafter amended, a
copy of which is attached hereto as Appendix A. This advisory agreement and all
amendments thereto are hereinafter referred to as "the GW Agreement". In the GW
Agreement, the Adviser agreed to act as adviser to and manager of the Fund. In
that capacity it agreed to manage the investment and reinvestment of the assets
of any portfolio of the Fund in existence or created in the future and to
administer the Fund's affairs. The Adviser wishes to obtain assistance with
respect to its aforesaid advisory and management role with respect to the
Portfolio only to the extent described herein, and the Fund by this Agreement
agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments as set forth in the
Fund's Registration Statement, management of investments and any other property
of the Portfolio, and providing or obtaining such services as may be necessary
in managing, acquiring or disposing of investments, consulting as appropriate
with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and sales
within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio;
(k) vote all shares held by the Portfolio.
In connection with the rendering of the services required to be
provided by the Sub-adviser under this Agreement, the Sub-adviser may, to the
extent it deems appropriate and subject to compliance with the requirements of
applicable laws and regulations, and upon receipt of written approval of the
Fund, make use of its affiliated companies and their employees; provided that
the Sub-adviser shall supervise and remain fully responsible for all such
services in accordance with and to the extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolio.
The Adviser will continue to provide all of the services described in
the GW Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefitted by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized after consultation with the Adviser to obtain, and
pay at its own expense, for such information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, based on an annual percentage of the assets of
the Portfolio (the "NAV Fee") as set forth below:
Annual Fee Assets
------ --- ------
.55% first $50 million
.50% next $50 million
.40% over $100 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month, calculated as set
forth in the then current Registration Statement of the Fund. If this Agreement
is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GW Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser will be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or for their advisory clients arise for consideration at
or about the same time, the Fund agrees that the Sub-advisor may make
transactions in such securities, insofar as feasible, for the respective
entities and clients in a manner deemed equitable to all. To the extent that
transactions on behalf of more than one client of the Sub-adviser during the
same period may increase the demand for securities being purchased or the supply
of securities being sold, the Fund recognizes that there may be an adverse
effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by (i) the
Board of Directors of the Fund including a majority of directors who are not
parties to this Agreement or interested persons of any such party to this
Agreement; (ii) the shareholders of the Portfolio in accordance with the 1940
Act, and (iii) the Merger of AIM Management Group Inc. and INVESCO PLC pursuant
to the Merger Agreement of November 4, 1996 is consummated, and this Agreement
shall come into full force and effect on the date on which all of these
conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the Fund, the
Adviser and the Sub-adviser; provided that no material amendment of this
Agreement shall be effective without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser as a result of
the activities of the Sub-adviser under this Agreement, including the activities
of the Sub-adviser's officers and directors, agents, employees, controlling
persons, shareholders, and any other person or entity affiliated with the
Sub-adviser or retained by it to perform or assist in the performance of its
obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the GW Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GW Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement or the GW Agreement; provided, however, that in no event is
Adviser's indemnity in favor of Sub-adviser deemed to protect Sub-adviser
against any liability to which the Sub-adviser would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations or
duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolio, the term "majority of the outstanding shares"
means the lesser of (i) 67% of the shares represented at a meeting at which more
than 50% of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Sales Literature
The Adviser will not use the Sub-adviser's name in Fund sales
literature without prior review and approval by the Sub-adviser, which will not
be unreasonably withheld or delayed.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: G W CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. XxXxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Witness: INVESCO TRUST COMPANY
/s/ Xxxx X. Xxxxx /s/ Xxx X. Xxxxxx
Address: 0000 Xxxx Xxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Secretary
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
March 3, 1997, by and between GW Capital Management, LLC ("the Adviser"),
INVESCO Trust Company ("the Sub-adviser") and Maxim Series Fund, Inc. ("xxx
Xxxx") ("the Agreement") for the Maxim INVESCO ADR Portfolio and is hereby
incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management,
Inc." shall refer instead to "GW Capital Management, LLC," and all references to
"GW Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
INVESCO TRUST COMPANY
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxx X. Xxxxxx
Title: President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
AMENDMENT TO
SUB-ADVISORY AGREEMENT
The following amendment is made to the Sub-Advisory Agreement dated March
3, 1997, by and between Maxim Series Fund, Inc. (the "Fund"), GW Capital
Management, LLC (the "Adviser"), and INVESCO Trust Company (the "Sub
Adviser")(the "Agreement"), as amended December 5, 1997, for Maxim INVESCO ADR
Portfolio, and is hereby incorporated into and made a part of the Agreement.
Effective May 1, 1999, all references to "INVESCO Trust Company" shall
refer instead to "INVESCO Funds Group, Inc.", and all references to "INVESCO
Trust Company, a Colorado trust company" shall refer instead to "INVESCO Funds
Group, Inc., a Delaware corporation" wherever such references shall appear in
the Agreement or the amendments thereto.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate this 6th day of March, 2001, in theirs
names and on their behalf by and through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
Title: Secretary Title: Vice President
INVESCO FUNDS GROUP, INC.
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel Title: Senior Vice President, Treasurer
MAXIM SERIES FUND, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx XxXxxxxx
Title: Secretary Title: Chairman and President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 3rd day of March, 1997 by and between G W Capital Management, Inc., a
Colorado corporation, registered as an investment adviser under the Investment
Advisers Act of 1940 ("the Adviser"), INVESCO Trust Company, a Colorado trust
company registered as an Investment Adviser under the Investment Advisers Act of
1940 ("the Sub-adviser"), and Maxim Series Fund, Inc., a Maryland corporation
("the Fund"), this Agreement embodying the arrangement whereby the Sub-adviser
will act as an investment adviser to the Maxim INVESCO Small-Cap Growth
Portfolio of the Fund (the "Portfolio"), in conjunction with the Adviser, as
follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, which agreement is dated April 1, 1982, and as thereafter amended, a
copy of which is attached hereto as Appendix A. This advisory agreement and all
amendments thereto are hereinafter referred to as "the GW Agreement". In the GW
Agreement, the Adviser agreed to act as adviser to and manager of the Fund. In
that capacity it agreed to manage the investment and reinvestment of the assets
of any portfolio of the Fund in existence or created in the future and to
administer the Fund's affairs. The Adviser wishes to obtain assistance with
respect to its aforesaid advisory and management role with respect to the
Portfolio only to the extent described herein, and the Fund by this Agreement
agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments as set forth in the
Fund's Registration Statement, management of investments and any other property
of the Portfolio, and providing or obtaining such services as may be necessary
in managing, acquiring or disposing of investments, consulting as appropriate
with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and sales
within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio;
(k) vote all shares held by the Portfolio.
In connection with the rendering of the services required to be
provided by the Sub-adviser under this Agreement, the Sub-adviser may, to the
extent it deems appropriate and subject to compliance with the requirements of
applicable laws and regulations, and upon receipt of written approval of the
Fund, make use of its affiliated companies and their employees; provided that
the Sub-adviser shall supervise and remain fully responsible for all such
services in accordance with and to the extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolio.
The Adviser will continue to provide all of the services described in
the GW Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefitted by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized after consultation with the Adviser to obtain, and
pay at its own expense, for such information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, based on an annual percentage of the assets of
the Portfolio (the "NAV Fee") as set forth below:
Annual Fee Assets
------ --- ------
.50% first $25 million
.45% next $50 million
.40% next $25 million
.35% over $100 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month, calculated as set
forth in the then current Registration Statement of the Fund. If this Agreement
is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GW Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser will be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or for their advisory clients arise for consideration at
or about the same time, the Fund agrees that the Sub-advisor may make
transactions in such securities, insofar as feasible, for the respective
entities and clients in a manner deemed equitable to all. To the extent that
transactions on behalf of more than one client of the Sub-adviser during the
same period may increase the demand for securities being purchased or the supply
of securities being sold, the Fund recognizes that there may be an adverse
effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by (i) the
Board of Directors of the Fund including a majority of directors who are not
parties to this Agreement or interested persons of any such party to this
Agreement; (ii) the shareholders of the Portfolio in accordance with the 1940
Act, and (iii) the Merger of AIM Management Group Inc. and INVESCO PLC pursuant
to the Merger Agreement of November 4, 1996 is consummated and this Agreement
shall come into full force and effect on the date on which all of these
conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the Fund, the
Adviser and the Sub-adviser; provided that no material amendment of this
Agreement shall be effective without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, broker or other person with whom or into whose hands any monies,
shares of the Fund, or securities and investments may be deposited or come,
pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser as a result of
the activities of the Sub-adviser under this Agreement, including the activities
of the Sub-adviser's officers and directors, agents, employees, controlling
persons, shareholders, and any other person or entity affiliated with the
Sub-adviser or retained by it to perform or assist in the performance of its
obligations under this Agreement; provided, however, that in no event is
Sub-adviser's indemnity in favor of Adviser deemed to protect Adviser against
any liability to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations or duties under
this Agreement or the GW Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GW Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this Agreement or the GW Agreement; provided, however, that in no event is
Adviser's indemnity in favor of Sub-adviser deemed to protect Sub-adviser
against any liability to which the Sub-adviser would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations or
duties under this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolio, the term "majority of the outstanding shares"
means the lesser of (i) 67% of the shares represented at a meeting at which more
than 50% of the outstanding shares are represented or (ii) more than 50% of the
outstanding shares. To the extent that the applicable laws of the State of
Colorado conflict with applicable provisions of the Investment Company Act of
1940, as amended, or the rules and regulations thereunder, such Act, rules and
regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Sales Literature
The Adviser will not use the Sub-adviser's name in Fund sales
literature without prior review and approval by the Sub-adviser, which will not
be unreasonably withheld or delayed.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable or (c) on the earlier of
delivery or three business days after mailing by United States certified mail,
postage and fees prepaid, to the appropriate party at the address set forth
below, or to such other address as the party so notifies the others in writing.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: G W CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. XxXxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Witness: INVESCO TRUST COMPANY
/s/ Xxxx X. Xxxxx /s/ Xxx X. Xxxxxx
Address: 0000 Xxxx Xxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Xxxx
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Secretary
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
March 3, 1997, by and between GW Capital Management, LLC ("the Adviser"),
INVESCO Trust Company ("the Sub-adviser") and Maxim Series Fund, Inc. ("xxx
Xxxx") ("the Agreement") for the Maxim INVESCO Small-Cap Growth Portfolio and is
hereby incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management,
Inc." shall refer instead to "GW Capital Management, LLC," and all references to
"GW Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
INVESCO TRUST COMPANY
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxx X. Xxxxxx
Title: President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
AMENDMENT TO
SUB-ADVISORY AGREEMENT
The following amendment is made to the Sub-Advisory Agreement dated
March 3, 1997, by and between Maxim Series Fund, Inc. (the "Fund"), GW Capital
Management, LLC (the "Adviser"), and INVESCO Trust Company (the "Sub
Adviser")(the "Agreement"), as amended December 5, 1997, for Maxim INVESCO
Small-Cap Growth Portfolio, and is hereby incorporated into and made a part of
the Agreement.
Effective May 1, 1999, all references to "INVESCO Trust Company" shall
refer instead to "INVESCO Funds Group, Inc.", and all references to "INVESCO
Trust Company, a Colorado trust company" shall refer instead to "INVESCO Funds
Group, Inc., a Delaware corporation" wherever such references shall appear in
the Agreement or the amendments thereto.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate this 6th day of March, 2001, in theirs
names and on their behalf by and through their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
Title: Secretary Title: Vice President
INVESCO FUNDS GROUP, INC.
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary and General Counsel Title: Senior Vice President, Treasurer
MAXIM SERIES FUND, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx XxXxxxxx
Title: Secretary Title: Chairman and President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 1st day of December, 1993 by and between The Great-West Life Assurance
Company, a Canadian stock life insurance company registered as an investment
adviser under the Investment Advisers Act of 1940 ("the Adviser"), Xxxxxxxxx
Investment Counsel, Inc., a Florida corporation registered as an investment
adviser under the Investment Advisers Act of 1940 ("the Sub-adviser"), and Maxim
Series Fund, Inc., a Maryland corporation ("the Fund"), this Agreement embodying
the arrangement whereby the Sub-adviser will act as an investment adviser to the
International Portfolio I of the Fund (the "Portfolio"), in conjunction with the
Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, a copy of which agreement is dated April 1, 1982, and as thereafter
amended, a copy of which is attached hereto as Appendix A. This advisory
agreement and all amendments thereto are hereinafter referred to as "the GWL
Agreement". In the GWL Agreement, the Adviser agreed to act as adviser to and
manager of the Fund. In that capacity it agreed to manage the investment and
reinvestment of the assets of any portfolio of the Fund in existence or created
in the future and to administer the Fund's affairs. The Adviser wishes to obtain
assistance with respect to its aforesaid advisory and management role with
respect to the Portfolio only to the extent described herein, and the Fund by
this Agreement agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments, management of
investments and any other property of the Portfolio, and providing or obtaining
such services as may be necessary in managing, acquiring or disposing of
investments, consulting as appropriate with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and sales
within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) arrange with the Investment Operations Department of the Adviser an
administrative process which permits the Adviser to appropriately reflect in its
daily determination of unit values, the expenses that will be borne directly by
the Portfolio and which are incurred as a result of providing investment
management services to the Portfolio;
(k) vote all shares held by the Portfolio.
The Adviser will continue to provide all of the services described in
the GWL Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information. Supplemental investment research shall be limited to statistical
and other factual information, advice regarding economic factors and trends, and
advice as to occasional transactions in specific securities, and shall not
involve general advice or recommendations regarding the purchase or sale of
securities. The expenses of the Sub-adviser may not be necessarily reduced as a
result of the receipt of such supplemental information. The Sub-adviser and the
Adviser shall regularly report to the Board when the Sub-adviser has secured or,
where time permits, the Sub-adviser intends to secure said supplemental
investment research. It is understood and agreed that the Board retains the
right to limit the scope of or disapprove of said research.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, a percentage of the assets of the Portfolio
(the "NAV Fee") according to the following schedule:
.70% on the first $25 million in assets
.55% on the next $25 million in assets
.50% on the next $50 million in assets
.40% on all assets over $100 million
This calculation will be based on the average daily net assets of the Portfolio
during such month.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GWL Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction. In evaluating the net results of brokerage
services offered by brokers or dealers that also provide supplemental investment
research to the Sub-adviser for a flat fee in accordance with section A of
Article II hereof, the Sub-adviser need not take such a flat fee into
consideration.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or sub-adviser or for their advisory clients arise for
consideration at or about the same time, the Fund agrees that the Sub-adviser
may make transactions in such securities, insofar as feasible, for the
respective entities and clients in a manner deemed equitable to all. To the
extent that transactions on behalf of more than one client of the Sub-adviser
during the same period may increase the demand for securities being purchased or
the supply of securities being sold, the Fund recognizes that there may be an
adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by the Board
of Directors of the Fund including a majority of directors who are not parties
to this Agreement or interested persons of any such party to this Agreement; and
this Agreement shall come into full force and effect on the date on which all of
these conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) shall not be amended without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
in connection with the matters to which this Agreement relates. The federal
securities laws impose liabilities under certain circumstances on persons who
act in good faith and, therefore, nothing herein shall in any way constitute a
waiver or limitation of any rights which the Fund or any shareholder of the Fund
may have under any federal securities laws. The Sub-adviser shall not be liable
for the acts and omissions of any independent contractor used by it nor for
those of any bank, trust company, broker or other person with whom or into whose
hands any monies, shares of the Fund, or securities and investments may be
deposited or come, pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
The Sub-adviser agrees and undertakes to hold the Adviser harmless and
to indemnify and protect the Adviser from and against any and all lawsuits or
other claims brought against the Adviser as a result of the activities of the
Sub-adviser under this Agreement, including the activities of the Sub-adviser's
officers and directors, agents, employees, controlling persons, shareholders,
and any other person or entity affiliated with the Sub-adviser or retained by it
to perform or assist in the performance of its obligations under this Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GWL Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this agreement or the GWL Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement is subject to the provisions of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder, including such exemptions therefrom as the
Securities and Exchange Commission may grant. Words and phrases used herein
shall be interpreted in accordance with that Act and those rules and
regulations. As used with respect to the Portfolio, the term "majority of the
outstanding shares" means the lesser of (i) 67% of the shares represented at a
meeting at which more than 50% of the outstanding shares are represented or (ii)
more than 50% of the outstanding shares.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their respective officials duly authorized, as of the day and year
first above written.
Witness: THE GREAT-WEST LIFE ASSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
Witness: TEMPLETON INVETMENT COUNSEL, INC.
/s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxx
Xxxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxx, Senior Vice President
Secretary, Vice President and Director
And General Counsel
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. XxxXxxxxx
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
December 1, 1993, as amended (the "Agreement"), and is hereby incorporated into
and made a part of the Agreement.
Article III, Section A is amended to read:
The Advisor, and not the Fund, will pay on the 1st day of each month as
monthly compensation to the Sub-adviser for the services rendered by the
Sub-adviser with respect to the Portfolio, as described in Article II of this
Agreement, based on an annual percentage of the assets of the Portfolio (the
"NAV Fee") as set forth below:
Annual Percentage Monthly Percentage
.70% on the first $25 million in assets .0582% on the first $25 million in assets
.55% on the next $25 million in assets .0457% on the next $25 million in assets
.50% on the next $50 million in assets .0416% on the next $50 million in assets
.40% on all assets over $100 million .0333% on all assets over $100 million
Payment to the Sub-advsier will be made monthly by the Advsier based on the
average daily net assets of the Portfolio during each month.
IN WITNESS WHEREOF, the parties hereto have caused this amendment agreement to
be executed in duplicate, in their names and on their behalf by and through
their duly authorized offices as of the 1st day of December, 1993.
Witness: THE GREAT-WEST LIFE ASSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
Witness: TEMPLETON INVETMENT COUNSEL, INC.
/s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxx
And General Counsel
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. XxxXxxxxx
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
December 1, 1993, as amended (the "Agreement"), and is hereby incorporated into
and made a part of the Agreement.
Effective November 1, 1996, the parties to this agreement shall be
Maxim Series Fund, Inc., GW Capital Management, Inc., a Colorado corporation,
registered under the Investment Company Act of 1940 ("the Adviser"), and
Xxxxxxxxx Investment Counsel, Inc. ("the Sub-Adviser") whereby the Adviser will
act as investment adviser to the Fund according to the terms and conditions set
forth in the Agreement and the Great-West Life Assurance Company shall, from and
after that date, no longer be a party to said agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxx X. Xxxxx By: /s/ X.X. Xxxx
Witness: XXXXXXXXX INVESTMENT COUNSEL, INC.
/s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Chairman
Witness: GW CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
President
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
December 1, 1993, by and between GW Capital Management, LLC ("the Adviser"),
Xxxxxxxxx Investment Counsel, Inc. ("the Sub-adviser") and Maxim Series Fund,
Inc. ("xxx Xxxx") ("the Agreement"), as amended November 1, 1996 and December 1,
1993, and is hereby incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management,
Inc." shall refer instead to "GW Capital Management, LLC," and all references to
"GW Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
XXXXXXXXX INVESTMENT COUNSEL, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this 1st day of November, 1994 by and between The Great-West Life Assurance
Company, a Canadian stock life insurance company registered as an investment
adviser under the Investment Advisers Act of 1940 ("the Adviser"), X. Xxxx
Price, a Maryland company registered as an investment adviser under the
Investment Advisers Act of 1940 ("the Sub-adviser"), and Maxim Series Fund,
Inc., a Maryland corporation ("the Fund"), this Agreement embodying the
arrangement whereby the Sub-adviser will act as an investment adviser to the
Maxim X. Xxxx Price Equity-Income Portfolio (the "Portfolio"), in conjunction
with the Adviser, as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, which agreement is dated April 1, 1982, and as thereafter amended, a
copy of which is attached hereto as Appendix A. This advisory agreement and all
amendments thereto are hereinafter referred to as "the GWL Agreement". In the
GWL Agreement, the Adviser agreed to act as adviser to and manager of the Fund.
In that capacity it agreed to manage the investment and reinvestment of the
assets of any portfolio of the Fund in existence or created in the future and to
administer the Fund's affairs. The Adviser wishes to obtain assistance with
respect to its aforesaid advisory and management role with respect to the
Portfolio only to the extent described herein, and the Fund by this Agreement
agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, have no authority to act
for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations to
assist in managing the investment and reinvestment of the assets of the
Portfolio, the Sub-adviser shall, when appropriate and consistent with the
limitations set forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent economic,
statistical, and financial data relevant to the investment policies of the
Portfolio;
(b) consult with the Adviser and with the Board and furnish to the Adviser
and the Board recommendations with respect to an overall investment plan for the
Portfolio for approval, modification, or rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall investment
plan approved by the Board for the Portfolio, including making and carrying out
decisions to acquire or dispose of permissible investments, management of
investments and any other property of the Portfolio, and providing or obtaining
such services as may be necessary in managing, acquiring or disposing of
investments, consulting as appropriate with the Adviser;
(e) regularly report to the Adviser and the Board with respect to the
implementation of any approved overall investment plan and any other activities
in connection with management of the assets of the Portfolio;
(f) communicate to the Adviser the purchases and sales within the Portfolio
on the day after trade date (trade date plus one);
(g) arrange with the applicable broker or dealer at the time of the
purchase or sale of investments or other assets of the Portfolio for the
appropriate delivery of the investment or other asset;
(h) report monthly in writing to the Adviser and report at least annually
in person to the Board with respect to the implementation of the approved
investment plan and any other activities in connection with management of the
assets of the Portfolio;
(i) maintain all required records, memoranda, instructions or
authorizations relating to the acquisition or disposition of investments or
other assets of the Portfolio;
(j) vote all shares held by the Portfolio.
The Adviser will continue to provide all of the services described in
the GWL Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information. Supplemental investment research shall be limited to statistical
and other factual information, advice regarding economic factors and trends, and
advice as to occasional transactions in specific securities, and shall not
involve general advice or recommendations regarding the purchase or sale of
securities. The expenses of the Sub-adviser may not be necessarily reduced as a
result of the receipt of such supplemental information. The Sub-adviser and the
Adviser shall regularly report to the Board when the Sub-adviser has secured or,
where time permits, the Sub-adviser intends to secure said supplemental
investment research. It is understood and agreed that the Board retains the
right to limit the scope of or disapprove of said research.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement subject to the review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the Fund as stated in its Registration Statement, as amended
from time to time, filed with the Securities and Exchange Commission, its
Articles of Incorporation and Bylaws, as amended from time to time, and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay on the
last day of each month as monthly compensation to the Sub-adviser for the
services rendered by the Sub-adviser with respect to the Portfolio, as described
in Article II of this Agreement, a percentage of the assets of the Portfolio
(the "NAV Fee") according to the following schedule:
Annual Fee Assets
.50% First $20 million in assets
.40% Next $30 million in assets
.40% On All assets once total
assets exceed $50 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred in performing the services set forth in Article II hereof.
These expenses include only the costs incurred in providing sub-advisory
services pursuant to this Agreement (such as compensating and furnishing office
space for officers and employees of the Sub-adviser connected with investment
and economic research, trading, and investment management of the Portfolio).
As described in the GWL Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
co-ordination with and supervision by the Adviser and the Fund's Board of
Directors, and to place orders pursuant to its determinations, either directly
with the issuer, with any broker dealer or underwriter that specializes in the
securities for which the order is made, or with any other broker or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that
will execute the purchases and sales of portfolio securities for the Portfolio
and will use its best efforts to obtain the most favorable net results and
execution of the Portfolio' orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
and difficulty of the transaction. In evaluating the net results of brokerage
services offered by brokers or dealers that also provide supplemental investment
research to the Sub-adviser for a flat fee in accordance with section A of
Article II hereof, the Sub-adviser need not take such a flat fee into
consideration.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) provided by
such member, broker or dealer, viewed in terms of either that particular
transaction or the Sub-adviser's over-all responsibilities with respect to the
accounts as to which it exercises investment discretion (as that term is defined
in Section 3(a)(35) of the Securities Exchange Act of 1934). The Sub-adviser
shall regularly report to the Adviser and the Board with respect to the
brokerage commissions incurred by the Portfolio for the purchases and sales of
its portfolio securities. The Adviser and the Board will review the amount of
such brokerage commissions and consult with the Sub-adviser in that regard.
Subject to the above requirements and compliance with the provisions of
the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers or dealers with
which it or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services to others so long as the Sub-adviser fulfills its rights and
obligations under this Agreement. It is understood that directors, officers,
employees and shareholders of the Fund are or may become interested in the
Sub-adviser, as directors, officers, employees or shareholders or otherwise, and
that directors, officers, employees or shareholders of the Sub-adviser are or
may become similarly interested in the Fund, and that the Sub-adviser is or may
become interested in the Fund as shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolio may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or by the Sub-adviser or its affiliates. Because of different investment
objectives or other factors, a particular security may be bought by the
Sub-adviser or its affiliates or for one or more clients when one or more
clients are selling the same security. If purchases or sales of securities for
the Portfolio or other entities for which the Sub-adviser or its affiliates act
as investment adviser or sub-adviser or for their advisory clients arise for
consideration at or about the same time, the Fund agrees that the Sub-adviser
may make transactions in such securities, insofar as feasible, for the
respective entities and clients in a manner deemed equitable to all. To the
extent that transactions on behalf of more than one client of the Sub-adviser
during the same period may increase the demand for securities being purchased or
the supply of securities being sold, the Fund recognizes that there may be an
adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies in order to obtain favorable
execution and low brokerage commissions. In that event, allocation of the
securities purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-adviser in the manner it considers to be
most equitable and consistent with its fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by the Board
of Directors of the Fund including a majority of directors who are not parties
to this Agreement or interested persons of any such party to this Agreement; and
this Agreement shall come into full force and effect on the date on which all of
these conditions are met.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
and (b) by the vote of a majority of the members of the Board, who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval. In
connection with such approvals, the Board shall request and evaluate, and the
Sub-adviser shall furnish, such information as may be reasonably necessary to
evaluate the terms of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days prior
written notice;
(b) shall be subject to termination, without the payment of any penalty, by
the Board or by vote of a majority of the outstanding voting securities of the
Portfolio, on sixty days written notice to the Sub-adviser;
(c) shall not be amended without specific approval of such amendment by (i)
the Board, including a majority of those directors who are not parties to this
Agreement or interested persons of such a party, cast in person at a meeting
called for the purpose of voting on such approval, and (ii) a majority of the
outstanding shares of the Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission all such records as are required to be maintained pursuant to said
rules. The Sub-adviser also agrees that it will maintain all records and
accounts regarding the investment activities of the Fund in a confidential
manner. All such accounts or records shall be made available, within five (5)
business days of the request, to the Fund's accountants or auditors during
regular business hours at the Sub-adviser's offices upon reasonable prior
written notice; provided, however, that the Sub-adviser shall be permitted to
keep such records or copies thereof for such periods of time as are necessary to
comply with the rules and regulations of the Securities and Exchange Commission
or other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
in connection with the matters to which this Agreement relates. The federal
securities laws impose liabilities under certain circumstances on persons who
act in good faith and, therefore, nothing herein shall in any way constitute a
waiver or limitation of any rights which the Fund or any shareholder of the Fund
may have under any federal securities laws. The Sub-adviser shall not be liable
for the acts and omissions of any independent contractor used by it nor for
those of any bank, trust company, broker or other person with whom or into whose
hands any monies, shares of the Fund, or securities and investments may be
deposited or come, pursuant to the provisions of this Agreement.
ARTICLE X
Indemnification
The Sub-adviser agrees and undertakes to hold the Adviser harmless and
to indemnify and protect the Adviser from and against any and all lawsuits or
other claims brought against the Adviser as a result of the activities of the
Sub-adviser under this Agreement, including the activities of the Sub-adviser's
officers and directors, agents, employees, controlling persons, shareholders,
and any other person or entity affiliated with the Sub-adviser or retained by it
to perform or assist in the performance of its obligations under this Agreement;
provided, however, that the Sub-adviser's obligation to indemnify and hold the
Adviser harmless extend only to such liability to which the Sub-adviser is
subject under Article IX of this Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser as a result of the activities of
the Adviser under this Agreement and the GWL Agreement, including the activities
of the Adviser's officers, directors, agents, employees, controlling persons,
shareholders, and any other person or entity affiliated with the Adviser or
retained by it to perform or assist in the performance of its obligations under
this agreement or the GWL Agreement.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents prior to
distribution to investors or submission to governmental bodies or
self-regulatory organizations and will incorporate its reasonable comments
relating to the description of, or services to be provided by, the Sub-adviser
or its affiliates, or relating to the description of the investment objectives
and policies of the Portfolio.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements or omissions in the Disclosure Documents made in reliance
upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading as required by the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, and
other applicable laws. The Sub-adviser will notify the Fund and the Adviser
promptly of the happening of any event which in the judgment of the Sub-adviser
makes any statement made in the Disclosure Documents untrue in any material
respect or requires the making of any changes in the Disclosure Documents in
order to make the statements therein, in the light of circumstances under which
they were made, not misleading in any material respect, except that the
Sub-adviser need only make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), and each person,
if any, who controls the Sub-adviser within the meaning of either Section 15 of
the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Fund's Registration Statement or Prospectus, or
any amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser
without the consent of the Sub-adviser.
Notwithstanding Article X to the contrary, the Sub-adviser agrees to
indemnify and hold harmless the Fund and the Adviser, their directors and
officers, and each person, if any, who controls the Fund or the Adviser within
the meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from the Fund and the Adviser to the
Sub-adviser, but only with respect to information furnished in writing by it
which the Fund had informed the Sub-adviser was to be used, or which the
Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. In case any action or proceeding shall be brought against the Fund or
the Adviser, their directors or officers, or any such controlling persons, in
respect of which indemnity may be sought against the Sub-adviser, the
Sub-adviser shall have the rights and duties given to the Fund and the Adviser,
and the Fund or the Adviser, their directors or officers, or such controlling
persons shall have the rights and duties given to the Sub-adviser, by the
preceding paragraph.
D. The agreements, representations and indemnification contained in
this Article XI shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Sub-adviser Indemnified
Party or by or on behalf of the Fund or the Adviser, its directors and officers,
or any person controlling the Fund or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Governing Law
This Agreement is subject to the provisions of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder, including such exemptions therefrom as the
Securities and Exchange Commission may grant. Words and phrases used herein
shall be interpreted in accordance with that Act and those rules and
regulations. As used with respect to the Portfolio, the term "majority of the
outstanding shares" means the lesser of (i) 67% of the shares represented at a
meeting at which more than 50% of the outstanding shares are represented or (ii)
more than 50% of the outstanding shares.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be signed by their respective officials duly authorized, as of the day and year
first above written.
Witness: THE GREAT-WEST LIFE ASSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Witness: X. XXXX PRICE
By: /s/
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx Low
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated
November 1, 1994, as amended (the "Agreement"), and is hereby incorporated into
and made a part of the Agreement.
Effective November 1, 1996, the parties to this agreement shall be
Maxim Series Fund, Inc., GW Capital Management, Inc., a Colorado corporation,
registered under the Investment Company Act of 1940 ("the Adviser"), and X. Xxxx
Price ("the Sub-Adviser") whereby the Adviser will act as investment adviser to
the Fund according to the terms and conditions set forth in the Agreement and
the Great-West Life Assurance Company shall, from and after that date, no longer
be a party to said agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate, in their names and on their behalf by and
through their duly authorized officers.
Witness: MAXIM SERIES FUND, INC.
/s/ Xxxx X. Xxxxx By: /s/ X.X. Xxxx
Witness: X. XXXX PRICE
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Witness: GW CAPITAL MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
President
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated June
30, 1997 by and between GW Capital Management, LLC ("the Adviser"), X. Xxxx
Price Associates, Inc. ("the Sub-adviser") and Maxim Series Fund, Inc. ("xxx
Xxxx") ("the Agreement"), as amended November 1, 1996 and is hereby incorporated
into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management, Inc."
shall refer instead to "GW Capital Management, LLC," and all references to "GW
Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending agreement
to be executed in duplicate, in their names and on their behalf by and through
their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
X. XXXX PRICE ASSOCIATES, INC.
Attest: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
AMENDMENT TO
SUB-ADVISORY AGREEMENT
The following amendment is made to the Sub-Advisory Agreement dated
November 1, 1994, by and between Maxim Series Fund, Inc. (the "Fund"), GW
Capital Management, LLC (the "Adviser"), and X. Xxxx Price Associates, Inc. (the
"Sub-Adviser") (the "Agreement"), as amended December 5, 1997, and November 1,
1996, for the Maxim X. Xxxx Price Equity-Income Portfolio, and is hereby
incorporated into and made a part of the Agreement.
Effective the date of this amendment, the following provision will be
added as Article XV of the Agreement:
Confidential Information
Sub-Adviser and Adviser agree that each of them will treat as
confidential all facts, circumstances, information, data, plans, projects and
technical or commercial knowledge gained in relation to the other party, or
received from the other party, in particular, information relating to the
defined contribution business including, but not limited to, customers,
employees, suppliers, servicing methods, programs, strategies and related
information ("Confidential Information"). Information in the public domain,
through no wrongful action on the part of either party, shall not be considered
Confidential Information. Sub-Adviser and Adviser undertake to each other that
they will not disclose Confidential Information to any third parties or to
Sub-Adviser's or Adviser's affiliates and neither company will use such
Confidential Information obtained from the other company to directly compete
with the company except a company may disclose the Confidential Information in
the following limited circumstances: (i) to their legal advisers, (ii) with the
prior written consent of the other party, (iii) as required by law, or (iv) as
necessary to gain or retain regulatory approvals. Prior to any disclosure under
the foregoing subsections (iii) and (iv), the party intending such disclosure
shall first notify the other party to allow such other party a reasonable
opportunity to seek an appropriate protective order. The parties further agree
that Confidential Information shall not be commercially exploited by or on
behalf of either party.
For purposes of this Section, defined contribution plan shall mean
401(a), 401(k), 457 and 403(b) plans.
IN WITNESS WHEREOF, the parties hereto have caused this amending
agreement to be executed in duplicate this 28th day of December, 1999, in their
names and on their behalf by and through their duly authorized officers.
MAXIM SERIES FUND, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: President
X. XXXX PRICE
ASSOCIATES, INC.
Attest: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GW CAPITAL MANAGEMENT, LLC.
Attest: /s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: Xxxx X. Xxxxxx
Title: President
Amendment to
Sub-Advisory Agreement
The following amendment is made to the Sub-Advisory Agreement dated June
30, 1997, by and between GW Capital Management, LLC ("the Adviser"), X. Xxxx
Price Associates, Inc. ("the Sub-adviser") and Maxim Series Fund, Inc. ("xxx
Xxxx") ("the Agreement") for the Maxim MidCap Growth Portfolio and is hereby
incorporated into and made a part of the Agreement:
Effective December 5, 1997, all references to "GW Capital Management, Inc."
shall refer instead to "GW Capital Management, LLC," and all references to "GW
Capital Management, Inc, a Colorado corporation," shall refer instead to "GW
Capital Management, LLC, a Colorado limited liability company, whenever such
references appear in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this amending agreement
to be executed in duplicate, in their names and on their behalf by and through
their duly authorized officers.
GW CAPITAL MANAGEMENT, LLC
Attest:/s/ Xxxxx X. XxXxxx By: /s/ Xxxx X. Xxxxxx
Name: Xxxxx X. XxXxxx Name: X.X. Xxxxxx
Title: President
X. XXXX PRICE ASSOCIATES, INC.
Attest: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President
MAXIM SERIES FUND, INC.
Attest:/s/ Xxxxxxx X. Xxxxx By: /s/ X.X. Xxxx
Name: Xxxxxxx X. Xxxxx Name: X.X. Xxxx
Title: President
